Dixon mistrial motions don't hold up

December 12, 2009

Having failed during the trial in their attempts to demonize the prosecution, Mayor Sheila Dixon's lawyers shifted tactics in the motions for a new trial they filed Friday and sought to demonize the jury, the 12 men and women who spent 40 hours over seven days in a painstaking debate over the guilt or innocence of Baltimore's most prominent elected official.

In the telling of attorney Arnold Weiner and his colleagues, the jurors all but engaged in a criminal conspiracy of their own to deny the mayor a fair trial. No doubt some of the facts that have come out since their verdict - guilty on one charge, not guilty on three and hung on one - are unsettling. It certainly would have been preferable if one juror had acknowledged her experience in the criminal justice system, if another had mentioned her contact with Mayor Dixon and another witness years earlier, and if some jurors had not become friends on Facebook. It might have been easier for the jurors if two charges had not been dropped during the trial and if they had not been ordered to disregard the testimony related to them.

But aside from innuendo and baseless accusations, Mayor Dixon's attorneys provide no evidence that any of the omissions or extra-judicial communications served to prejudice the jurors against the mayor. In fact, in many cases, common sense would suggest the contrary.

• Theft charges against Shiron Davis. Mayor Dixon's attorneys argue for a mistrial based on the discovery after the trial that Juror No. 6, Shiron Davis, had failed to disclose during jury selection that she had been subject to theft charges two years ago. According to the attorneys, Ms. Davis was charged with stealing checks from her sister and using them to obtain $3,720 in cash. She was arrested and brought to trial Sept. 14, 2007. Under an agreement with the prosecutor, the charges were put on the inactive docket.

As the mayor's attorneys point out, the jurors were specifically asked whether they had been charged with theft within the last five years, and Ms. Davis indicated that she had not. However, Ms. Davis was charged with taking more than six times as much as Mayor Dixon was found guilty of embezzling, and she received no punishment whatsoever. How would that make her more inclined to throw the book at Mayor Dixon?

• Contact between the mayor, a witness and Shawana Ramirez Tyler. Ms. Tyler, known during the trial as Juror No. 3, won a sweepstakes sponsored by the city in 2006 in which she received more than $300 in free groceries. At the award event, she was photographed near Ms. Dixon, who was then City Council president, and Mary Pat Fannon, a Dixon aide who was a witness in the trial. Ms. Tyler did not reveal during jury selection that she had previous contact with Ms. Dixon or Ms. Fannon, and she indicated she had not received a food basket from the city.

In interviews with The Sun, Ms. Tyler has said she did not realize that the contest was sponsored by the city, and she did not recall having met Ms. Dixon or Ms. Fannon. Though it may seem unlikely that she would not have remembered Ms. Dixon, it bears noting that as council president, she was a much less well-known figure. Nonetheless, it's hard to see how the memory of winning $300 in free groceries would have prejudiced Ms. Tyler against Ms. Dixon.

Would the contact with Ms. Fannon have made the juror more inclined to believe her testimony? Perhaps, but that testimony related to the charge on which the jury was hung, not the one on which the mayor was convicted.

• Facebook friends. During the trial, five jurors became friends on Facebook. Some of the messages they exchanged were publicly visible on the wall of Juror No. 12, James Chaney. The messages indicate that the jurors exchanged brief messages such as "Ready for round ...... oh I lost count! See you tomorrow," and "Hopefully today will be the last." On the last day of deliberations, a nonjuror commented, "Not guilty." After the guilty verdict, one juror responded, "NO AL, GUILTY AS HELL."

From this, Mr. Weiner imagines a conspiracy of five jurors to band together and stamp out dissent among their colleagues. He assumes that there must be other communications of a more nefarious nature, but he has no evidence of it.

The jurors were repeatedly told not to discuss the case outside of the jury room, and they should not have become Facebook friends. But Mr. Weiner provides no evidence that they engaged in any deliberations outside the jury room.

• New evidence. Mayor Dixon's attorneys allege that jurors must have sought information outside the record of the trial based on a jury note on the penultimate day of deliberations asking to return in the morning "due to new things brought to light." But jurors have explained in interviews that the note referred to the realization that they did not have to return a unanimous verdict on all counts.